Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) [Mexico][Grave Risk of harm] Petition granted]

In Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) Petitioner alleged that in January 2019, Respondent wrongfully removed Petitioner and Respondent’s two daughters, ages 9 and 10, from Mexico to the United States The Court ordered that the two children be returned to Mexico.

Before January 2019, Petitioner and Respondent lived in Mexico with their two minor children. Respondent describes their living situation as fraught with conflict, anger, and violence. In January 2019, Respondent took the parties’ two minor children and moved to Michigan.  After locating the children in Michigan, Petitioner filed an initial complaint in this Court on July 12, 2019. On October 29, 2019, the Court dismissed the case without prejudice for failure to serve Respondent. On October 30, 2019, Petitioner filed a second complaint for the immediate return of the two children to Mexico pursuant to the Hague Convention and its implementing statutes.

Respondent did not contest any element of the Petitioner’s prima facie case. Petitioner met his burden. Respondent raised three affirmative defenses under the Hague Convention: there is a grave risk of harm to the children if they are ordered to return to Mexico, the children have acclimated to living in Michigan, and they object to being returned to Mexico. The Court held that Respondent had not met her evidentiary burden with respect to her first and third defenses. Respondent’s second defense failed as a matter of law.

Article 13(b) of the Hague Convention provides that a court may decline to order the return of a child if there is a “grave risk that [their] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 42 U.S.C. § 11603(e)(2)(A) provides that this defense must be shown by clear and convincing evidence.

Respondent made the following allegations related to abuse:• The children have witnessed the Petitioner act violently toward their stepbrother. • Petitioner forcibly shaved Respondent’s son’s head, physically abused him, and forced him out of the marital home.• Petitioner refused to feed the two minor children when Respondent was traveling for business. • Petitioner violently and aggressively brushed their oldest daughter’s mouth, using soap as toothpaste, as he forcibly undertook this act with her toothbrush. • The petitioner physically and sexually abused Respondent. She alleges there is a restraining order issued in Mexico preventing the Petitioner from approaching or being in the presence of the Respondent or their daughters.

In Respondent’s initial filings, she also included psychological reports of the two children from October 14, 2019. The reports, prepared by a Mexican provider following video teleconferencing appointments with the children, concluded that they each suffered from “posttraumatic stress disorder, depression, anxiety, and general fear, caused by living in an environment with the paternal figure that was as psychologically violent as it was physically.”

The Court found Respondent's allegations of the Petitioner’s violence towards her credible and concerning. Testimony regarding the alleged violence towards Respondent’s son revealed that Petitioner did not forcibly shave his head, but instead took Respondent’s son to a barber to have his head shaved in connection with requirements for participation on a sports team. However, testimony showed that Petitioner physically assaulted Respondent’s son, forced him to stay in a shower against his will, and banished him from the parties’ home. Respondent conceded, however, “the minor children have not been physically assaulted”, nor have the daughters directly witnessed the physical abuse of their brother or mother. Testimony from the parties’ oldest daughter revealed that on one occasion, Petitioner poked her tongue with a toothbrush. The Court heard no evidence relating to food deprivation. These factual conclusions were confirmed by the Guardian Ad Litem’s report. Respondent presented no evidence beyond the initial mental health reports of any psychological harm to the children. Respondent did not call as a witness the psychologists who performed the evaluation; nor did she call any other mental health expert.

The Court observed that in Friedrich v. Friedrich, the Sixth Circuit noted that a grave risk of harm could exist in only two situations: First,...when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, . . . in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, maybe incapable or unwilling to give the child adequate protection. 78 F.3d 1060, 1069 (6th Cir. 1996).

The first Friedrich situation did not apply. The children’s residence in Mexico was “in a lovely, family-friendly neighborhood.” The children “attend school, play and do activities.” “Their neighborhood was nowhere near the ‘warzone’ or ‘place of famine’ the Friedrich court contemplates.” Respondent did not contest this characterization.

Respondent did not provide evidence sufficient to satisfy the second Friedrich situation. In Simcox v. Simcox, the Sixth Circuit analyzed when abuse could rise to the level of a grave risk of harm. 511 F.3d 594 (6th Cir. 2007). The court emphasized that grave risk of harm analysis focuses on “the time period between repatriation and the determination of custody by the courts in the child’s homeland.” The court separated abuse cases into three categories: First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’...In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings. Second, at the other end of the spectrum, there are cases in which the risk of harm is clearly grave, such as whether there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. . . . In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders...Third, there are those cases that fall somewhere in the middle, where abuse is substantially more than minor but is less obviously intolerable. Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return. Even in this middle category, undertakings should be adopted only where the court satisfies itself that the parties are likely to be particularly appropriate. Id. at 607-08.

The Court noted that Simcox court found the facts, in that case, to fall in the third, middle category. There, the father beat the children physically and abused the children’s mother in their presence. A psychologist found that the children suffered from Post-Traumatic Stress Disorder. The court emphasized that the Hague Convention “was never intended to be used as a vehicle to return children to abusive situations. ..[T]he Convention’s mandate of return ‘gives way before the primary interest of any person in not being exposed to physical or psychological danger.” Ultimately, the court found that “we cannot say, however, that the risk here is so grave that undertakings must be dismissed out-of-hand.” It remanded the case to the district court to determine what conditions could mitigate the grave risk of harm.

The Court found the abuse, in this case, to fall into Simcox’ first, “minor” category. The evidence, although serious, presented significantly less risk of harm to the children than did the evidence in Simcox. There, the children experienced direct physical abuse and witnessed the abuse of their mother. The court called the application of the grave risk defense to those facts “a close question.” Its determination relied on the serious nature of the abuse, its “extreme frequency,” the reasonable likelihood it would continue, and the likely exacerbation of the children’s PTSD upon return. Id. at 608-09. Here, Petitioner had not physically abused his children, nor had the children directly witnessed abuse of their mother or brother. Moreover, testimony portrayed the abuse as discrete incidents over a period of years. While Petitioner’s history of angry outbursts and violence towards Respondent and his stepson was concerning, it was not enough to show a grave risk of harm to the parties’ minor children. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (physical abuse of spouse, when not also directed at child, insufficient to trigger grave risk exception in absence of allegations of physical or psychological abuse toward child); Aly v. Aden, No. 12–1960, 2013 WL 593420, at *17–18 (D. Minn. Feb. 14, 2013) (four minor instances of domestic violence against spouse, only one of which was witnessed by child, insufficient to establish grave risk of harm); Fernandez v. Bailey, 2010 WL 3522134, at *2–3 (E.D. Mo. Sept. 1, 2010) (emotional, psychological, and physical abuse of spouse insufficient to establish grave risk when petitioner was not violent, abusive, or neglectful to the children).

Moreover, beyond a passing of the Petitioner’s ability to “purchase” courts in Mexico, Respondent had not argued that Mexican courts are “incapable or unwilling to give the child[ren] adequate protection.”

Respondent’s second affirmative defense failed as a matter of law. Article 12 of the Hague Convention provides that if a proceeding is commenced more than one year after the removal of a child and the child has become settled in their new environment, a court need not order the child’s return. These proceedings commenced less than one year after removal, and the defense did not apply.

Article 13 of the Hague Convention provides that a court may consider a child’s objection to returning if the child “has attained an age and degree of maturity at which it is appropriate to take account of [their] views.” 42 U.S.C. § 11603(e)(2)(B) provides that Respondent must show the children’s objection by a preponderance of the evidence. A child’s objection is different from a child’s wishes, as would be considered in a custody hearing. Neumann v. Neumann, 310 F.Supp.3d 823, 835 (E.D. Mich. 2018). An objection may require a child to set forth particularized reasons why they object as opposed to a mere general opposition to return. Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007). This Court had previously considered the objections of children as young as eight. See Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (finding that Hague Convention imposes no age limit on defense and eight-year old’s views may be considered).

The Court heard testimony in chambers, and on the record, from the parties’ older daughter, after which the Court determined that she had the level of maturity required to understand the proceedings and to provide meaningful testimony. She explained that she liked attending school in Michigan more than in Mexico because her classmates in Mexico would make fun of her for wearing glasses. She said that her father was often angry, and she would prefer to live with her mother. When asked where she would prefer to live, she said she would prefer to live in Michigan because she feels she will be “more successful” here than in Mexico. The child’s testimony did not rise to the level of objection required. Her opinions about her school, friends, parents, and future success all demonstrated a preference of a ten-year-old child for staying one place over another; however, a comparative preference of this nature lacks the particularity required to satisfy the narrow affirmative defense under Article 13. The Court found the child’s testimony to be more akin to a child’s wishes that could play a role in a custody hearing, than the particularized objections required under the Hague Convention, Yang v. Tsui, 499 F.3d at 279. See, e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (E.D.N.Y. 2010) (finding an articulation of a comparative preference for climate, education, and recreational activities insufficient to invoke affirmative defense).

Because Petitioner had met his prima facie case and Respondent had not shown an affirmative defense, the Court ordered the children’s return to Mexico.

Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019)[France] [Habitual residence] [Anticipatory retention] [Petition granted]

In Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019) the DC circuit affirmed a judgment of the district court which granted the petition of Sami Abou-Haidar which alleged that his wife, María Eugenia Sanin Vazquez, wrongfully retained their five-year-old daughter in the United States. 

        In October 2013, Sami Abou-Haidar and María Eugenia Sanin Vazquez married in Paris. Abou-Haidar, a citizen of France, Italy, and Lebanon, was an emergency doctor who provided house-call services. Sanin Vazquez, a citizen of Spain and Uruguay, was a professor of Economics at the University of Évry Val-d’Essonne, near Paris. The couple had a daughter in Paris in early 2014. Before July 2018, the family lived primarily in a rented apartment in Paris. The family also spent several months at a time at a Barcelona apartment they owned. There was no serious dispute that France was the family’s habitual residence before their move to the United States.
In January 2018, the Inter-American Development Bank offered Sanin Vazquez a consultancy in Washington, Sanin Vazquez agreed to serve as a Bank consultant from July 1, 2018 through December 31, 2019. The parties then took several steps to prepare for their departure from France. Sanin Vazquez requested a détachement—a temporary assignment or secondment—from her university for eighteen months, but maintained her university affiliation, her doctoral students, and her French pension. Abou-Haidar kept his Paris job but planned to work for ten to twelve consecutive days each month in France and spend the balance of the month in Washington. The couple rented out their Barcelona apartment for three years and moved out of their rented Paris apartment, leaving their furniture and large appliances in a storage unit in the same building. For the days he would spend in Paris, Abou-Haidar arranged to live in another, smaller Paris apartment that he owned, which he otherwise continued to rent out during the part of each month he spent in Washington. The couple took other steps in preparation for the move to Washington. Sanin Vazquez obtained G-4 diplomatic visas for the family valid for five years. 

        The couple moved into their rented Washington apartment on July 1, 2018. They enrolled their child in a nearby public Spanish-English bilingual elementary school. The child was now nearly six years old, had friends at her school, and participated in soccer and other extracurricular activities. By December 2018, however, the couple began to experience marital discord. As the marriage deteriorated, Sanin Vazquez took action to establish her primary physical custody over the child. On May 2, 2019, Sanin Vazquez filed a Complaint for Custody in D.C. Superior Court, seeking “primary physical custody” and “joint legal custody” of the child. On May 7, 2019, she notified him of the complaint and of her desire for a marital separation. Immediately thereafter, Abou-Haidar received service of the Superior Court complaint. On May 10, Sanin Vazquez told Abou-Haidar that she planned to stay in Washington, D.C. with their daughter after December 31 instead of returning to France. On May 31, Sanin Vazquez’s family law attorney wrote to Abou-Haidar that their Washington apartment had “never been the marital residence” and that Sanin Vazquez had “changed the locks on her apartment.”  On May 23, 2019, Abou-Haidar filed an answer and counterclaim in D.C. Superior Court, seeking “joint physical and legal custody” of their daughter. Then, on June 6, Abou-Haidar withdrew his Superior Court answer and counterclaim and instead sought assistance from the French Central Authority. On June 10, Abou-Haidar also filed a Hague Convention petition in the U.S. District Court in Washington for return of their daughter to France. About two weeks later, the French Central Authority dismissed Abou-Haidar’s application in a letter, stating that the “presence of your daughter in the United States is not unlawful since it was decided by the parental couple which holds the parental authority.” The district court, concluded that Abou-Haidar had proven by a preponderance of the evidence that the mother, Respondent María Eugenia Sanin Vazquez, had wrongfully retained the child within the meaning of the Convention on May 7, 2019 when she served Abou-Haidar with her Superior Court complaint, or at the latest on May 23, 2019, when Abou-Haidar filed his Superior Court answer and counterclaim seeking to maintain joint custody. The court further held that the child’s habitual residence was France because, “based on the full record,” the “parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States,” and evidence of the child’s acclimatization to the United States did not supplant that intent. Finally, the court held that the retention was wrongful because Sanin Vazquez did not dispute that the retention violated the French custodial rights that Abou-Haidar was exercising at the time of the retention. 

  The Court of Appeals affirmed. It observed, in the first case arising under the Hague Convention that had reached the court, that other circuits often distill analysis of whether a petition for return should be granted into a four-part inquiry, which the parties from the outset have expressly embraced and continue on appeal to agree is applicable: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

        On appeal, Sanin Vazquez challenged the district court’s findings only with respect to the first two questions. Regarding the first question, Sanin Vazquez took issue with the district court’s retention-date determination. Regarding the second question, Sanin Vazquez and Abou-Haidar agreed on the legal standard that should apply. The Courts analysis addressed only the first two questions, concluding that the district court did not err in finding that Sanin Vazquez retained the child in May 2019 and that the child’s habitual residence was France.

The court noted that Sanin Vazquez’s primary contention was that the petition had to be dismissed because the district court’s retention date of May 7, 2019, preceded December 31, 2019, the date through which the parties agreed the child would remain in the United States. Sanin Vazquez viewed this concern as jurisdictional, arguing that the dispute “is not ripe until January 1, 2020 passes”. In her view, recognizing a retention date prior to December 31, 2019, would constitute an “anticipatory retention”—a type of claim that, she asserted, American courts have never previously recognized. It rejected her effort to label her argument in jurisdictional terms because this case involved an actual, rather than anticipatory, retention. No court has held that either of these retention dates would be premature. The circuits identify the date of retention as “the date consent was revoked” or when the “petitioning parent learned the true nature of the situation.” Palencia v. Perez, 921 F.3d 1333, 1342 (11th Cir. 2019). For example, the Second Circuit has held that the date of retention is the date when the retaining parent advised the other that “she would not be returning with the [c]hildren” as originally planned. Marks ex rel. S.M. v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). The circuits also agree that the parental actions that serve to identify such date need not be particularly formal.

        The Court held that guided by these analyses, the district court correctly found that Sanin Vazquez retained the child at the earliest on May 7, 2019, when she informed Abou-Haidar of her Superior Court filing seeking “primary physical custody,” or at the latest by May 23, 2019, when Abou-Haidar filed his answer and counterclaim making clear that he opposed the proposed change to his custody rights. Under any circuit’s existing law on the point, one or more of these actions sufficed to identify a retention. These facts also distinguished  the case from the case on which Sanin Vazquez principally relied, Toren v. Toren, 191 F.3d 23 (1st Cir. 1999). Here, in contrast to Toren, a series of decisions and corresponding actions already taken by both parties clearly conveyed a ripe disagreement about where the child’s custody would lie. The First Circuit’s dismissal in Toren was consistent with the basic principle that, in order to be ripe, a challenge to an “anticipatory retention requires a clear communication that the retaining parent is not returning the child home.” The thrust of Sanin Vazquez’s argument was not that the district court misapplied these tests in identifying the date of retention, but that no retention was possible before the date through which the parties initially agreed that the child would reside in the United States. The fundamental flaw with this theory was that Sanin Vazquez’s unilateral actions to assert custody amounted to a declaration that she then rejected and sought to depart from the previous mutual arrangement. Courts routinely apply the same analysis to determine whether a retention occurred even when the actions evidencing retention precede the anticipated end date of the parents’ prior agreement. See, e.g., Blackledge, 866 F.3d at 178-79; Darin, 746 F.3d at 10-11. In Mozes the court held that the mother “retained” the children in the United States during a period when the parents had agreed the children would live with her here and before the date, they had set for the family to reunite at home in Israel. See Mozes, 239 F.3d at 1069-70 & n.5. 
The Court had no trouble concluding that this case involved an actual, not anticipatory, retention. 

The district court concluded, based on detailed factfinding, that France was the child’s habitual residence. Sanin Vazquez contended on appeal that the “factual findings made by the District Court, when applied to the law of and interpreting the Convention, could not possibly yield a ruling that habitual residence was still France.” In deciding what framework to apply to determine the child’s habitual residence all the circuits to have addressed the question agree that two important considerations are: (1) the parents’ shared intent for where the child should reside, and (2) the child’s acclimatization to a particular place. To the extent the circuits’ approaches diverge, they “differ only in their emphasis.” The Court had no occasion to decide which of these frameworks was correct because the parties agreed to application of the Mozes framework. In line with the Mozes framework, it first examined the district court’s findings regarding the parents’ shared intent, and then its findings regarding the child’s acclimatization.

        The district court found, and Sanin Vazquez conceded, that France was the family’s habitual residence before they came to Washington, D.C. denying that the family’s habitual residence was “still France” after the move. Under Mozes, a determination that shared parental intent has changed requires a finding that the parties had a “settled purpose” to establish a new habitual residence. 239 F.3d at 1074. Courts look at a variety of factors to determine whether the parents had a shared intent to change the child’s habitual residence, including “parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009). Courts have held parents cannot establish a new habitual residence without forsaking their existing one. A “person cannot acquire a new habitual residence without ‘forming a settled intention to abandon the one left behind.’” Darin, 746 F.3d at 11 (quoting Mozes, 239 F.3d at 1075). Mozes tells us that “[w]hether there is a settled intention to abandon a prior habitual residence is a question of fact as to which we defer to the district court.”. Here, the district court canvassed all of the record evidence and found that the parties intended to remain in Washington, D.C. for the eighteen months of Sanin Vazquez’s initial contract, but that any plans to stay beyond that period were “aspirational and contingent.” Sanin Vazquez did not articulate why any of these factual findings was clearly erroneous. Mozes recognizes a conceptual difference between abandoning a habitual residence and establishing a new one: a person can abandon a habitual residence “in a single day if he or she leaves it with a settled intention not to return to it,” but an “appreciable period of time and a settled intention will be necessary to enable him or her to become” habitually resident in a new country. Mozes, 239 F.3d at 1074-75). The district court explicitly acknowledged this conceptual difference, and held only that the parents did not have a settled intention to abandon France, regardless of their intentions with respect to Washington, D.C. The district court’s factual finding of the absence of settled intention to abandon France sufficed to support its habitual-residence holding. There was no legal error in its analysis of the point. 

        The second inquiry, subsidiary under the parties’ stipulated Mozes framework, was the child’s acclimatization to the new country. “Evidence of acclimatization is not enough to establish a child’s habitual residence in a new country when contrary parental intent exists.” Darin, 746 F.3d at 12 (citing Mozes, 239 F.3d at 1078-79). Mozes further counsels that courts should “be slow to infer from [a child’s contacts] that an earlier habitual residence has been abandoned” in the absence of shared parental intent to do so. 239 F.3d at 1079. Courts view a variety of factors as relevant to acclimatization, including “school enrollment, participation in social activities, the length of stay in the relative countries, and the child’s age.” Maxwell, 588 F.3d at 254. Here, Sanin Vazquez had not identified any error in the district court’s findings regarding the child’s acclimatization. The district court recognized that the child had adjusted to a new school, made friends, and participated in extracurricular activities in the ten months she spent in the United States prior to the retention in May 2019. But, until the sojourn in Washington, the child’s life was based almost entirely in Paris: her parents married there, she was born there, and she attended nursery school there. Sanin Vazquez did not argue that the district court committed any legal error in applying the Mozes framework to its findings relating to the parents’ shared intentions and the child’s acclimatization. Because the parties chose the Mozes framework, and Sanin Vazquez had not challenged the district court’s findings under the remaining questions or asserted any defenses, the Court affirmed the district court’s judgment granting Abou-Haidar’s petition for return.

Pope v Lunday, 2019 WL 7116115 (WD Oklahoma, 2019)[Brazil] [Habitual residence] [Petition denied]

          In Pope v Lunday, 2019 WL 7116115 (WD Oklahoma, 2019) the district court denied Pope’s petition seeking an order requiring that his estranged wife, Respondent Lauren Lunday, “return” their newborn twin children to Brazil.

          Pope’s petition claimed that the International Child Abduction Remedies Act applied to this matter because “the Children resided in utero with the parties in the family home [in Brazil] prior to the Respondent traveling by way of her deception to the United States,” that “Brazil was the habitual residence of the children at birth,” and that by keeping the children in Oklahoma, Lunday was thus “wrongfully retaining” the children away from their place of “habitual residence” in Brazil. The petition acknowledged, however, that (1) Lunday left Brazil long before the children were born (at 19-20 weeks in the pregnancy), (2) the children were born in the United States and had not spent a moment of their lives in Brazil, and (3) were currently with Lunday in the United States where Lunday presumably intended to stay.

          Pope argued that “this is not a case about wrongful removal of the children in utero,” but rather a case about “wrongful retention” of the children after birth. In Pope’s view, at the moment the children were born, they became “habitual residents” of Brazil because his and Lunday’s “last shared intent” was to reside in Brazil and raise the children there—a position that he believed rendered irrelevant the fact that he and Lunday had been estranged since the children were 19 to 20 weeks in utero. Pope’s position also assumed that day- (or hour- or minute-) old newborns must have a place of “habitual residence,” that this place of habitual residence can be a country in which the newborns had never been physically present, and that his and Lunday’s actual respective intents at the time of the children’s birth must be overridden by any past agreement he and Lunday had regarding where they would raise their hypothetical, future children. In response, Lunday argued that the children could not be habitual residents of a country in which they had never been physically present, that she and Pope had no agreement regarding where the children would reside,  and that even if any agreement was reached when the children were in utero, such an agreement is not sufficient to establish the habitual residency of the subsequently-born children.

          The Court held that this was not a case of children being wrongfully removed or retained within the meaning of the Convention, but rather a custody dispute that ought to be decided by a court with jurisdiction over such matters.

          The Court pointed out that Pope argued that the establishment of habitual residency in Brazil and the wrongful retention away from Brazil occurred simultaneously, at the moment of birth. Pope offered no on-point authority for this position, and it appeared none exists. This position cannot be squared with the text of the Convention, which explains that a child cannot be wrongfully “retained” away from a place unless they were first a habitual resident of that place. Not every crossing of a border with a child is “wrongful” under the Convention. Only removals or retentions of a child away from the place of habitual residence are “wrongful,”—i.e., it is the unilateral severing of established ties to the country that makes the removal or retention “wrongful.” For these reasons, the Court was not convinced that a newborn is capable, at the moment of birth, of having a place of “habitual residence,” as that term is used in the Convention. To conclude otherwise would be to render “habitual” meaningless. But even if a newborn can—or must—be assigned a place of habitual residence, there was no sense in which these children could be considered habitual residents of Brazil. It was undisputed that they were born in the United States to parents who were United States citizens, that they were themselves United States citizens, and that they hadn’t spent a moment of their lives in Brazil, much less enough time that Brazil could be considered the place they usually reside. Pope’s attempt to extend the concept of “last shared parental intent” to a case like this was problematic for several reasons. First, it rendered an agreement as to where to raise a child irrevocable unless superseded by a new agreement. Second, Pope’s position ignored everything that had happened since the alleged in utero agreement. It was undisputed that after leaving Brazil for the United States, Lunday ended her relationship with Pope, remained in the United States, and intended to remain in the United States. The petition was accordingly denied.

Foster v Foster, 2019 WL 6895442 (W.D. Wisconsin, 2019)[Guatemala] [Habitual residence] [Petition denied]

In Foster v Foster, 2019 WL 6895442 (W.D. Wisconsin, 2019), the district court denied the petition of James M. Foster, which sought an order that would require his wife, Ericka K. Foster, to return their three children to him in Guatemala. 

James Foster and Ericka Foster were both raised in Wisconsin, but met at a Christian camp in Colorado in 2001. They were married in Dodgeville, Wisconsin on May 31, 2002. At the time, Ericka was 23 and James was 24. James and Ericka had three children: “Steven” was born in Colorado on November 18, 2008, “Holly” and “Natalie” were born in Idaho on July 27, 2012, on June 2, 2015, respectively.  At the time of the hearing, the children were 11, 7 and 4 years old, respectively.

During their marriage, James and Ericka made their living as owners and operators of a real estate development company, Narrow Gate Properties LLC, at times living in homes they built for up to two years before flipping them. As a result, they moved twenty-two times during their marriage, mostly between the states of Idaho and Colorado, but also traveling for months at a time to fourteen different countries. To the extent the Fosters’ marriage had a locus, it was in Idaho. They first resided there in 2003 or 2004 until roughly 2008, before moving back to Colorado for a couple of years. The Fosters returned to reside in Idaho again from roughly 2011 until October 2016. In 2014, the parties traveled to Europe for several months. Before departing, they sold the home they were living in at that time in Idaho, stored their belongings in Idaho, with a plan to return at some point to use them, but did not have a concrete plan as to where they would live after this trip.  In October of 2016 the Fosters packed most of their belongings and stored them in a trailer. The Fosters then traveled as a family to Guatemala in the fall of 2016.  After their visit to Guatemala, the family traveled to Mexico for two to three additional weeks. The family traveled on to Belize for the holidays. On January 6, 2017, the family then returned to San Pedro La Laguna, renting a two-bedroom apartment on a month-to-month basis. The parties departed Guatemala in April 2017 and returned again to Wisconsin, where both sets of grandparents still resided. Beginning in early April 2017, the family lived in a two-bedroom RV parked in the driveway of James’ mother’s house in Wisconsin. James eventually returned to Guatemala alone in June 2017, with a plan to secure a more comfortable, larger place for the family to live in San Pedro La Laguna. Once there, James sent Ericka information about living options, including photographs and location details. While Ericka testified that she received this information in Wisconsin, she was not being asked for her input. James then rented a 2000 square foot house located on the lake for twelve months, which he claims Ericka approved. James maintains that Ericka and he had jointly agreed to return to Guatemala. Ericka’s testimony and contemporaneous text messages, however, painted a very different picture, indicating that Ericka did not want to live in Guatemala, but was given a stark choice by James to remain married and return to Guatemala or remain in Wisconsin with the children and without James. Left with no other option as she saw it, Ericka testified that she and the children boarded the plane in August 2017 to return to Guatemala with the hope that James would grow bored with Guatemala and they would return to the United States, true to a pattern that had continued throughout their marriage. On August 10, 2017, Ericka and the children arrived in Guatemala to begin living in the rental home with James in San Pedro La Laguna. In October 2017, the Fosters purchased approximately one acre of undeveloped land. This land was located directly across the street from their rental house. James testified that the purchase was also a mutual decision and that the parties intended to build a main house on the property in which the family would live, while building other “tiny houses” to be available for rent. Ericka again testified that James made this decision without input from her. In August 2018, even before the lease had ended, the family moved from their rental house across the street into the adjoining houses. During their approximately eighteen months of living in San Pedro La Laguna from August 2017 until February 2019, the Fosters were required to leave and re-enter Guatemala every 90 days, having never become legal residents that would have allowed them to stay in the country more permanently. Throughout this period, James and Ericka also maintained their drivers licenses in the United States, while neither had a license to drive in Guatemala. They also continued to file joint income tax returns in the United States, while neither James nor Ericka filed tax returns in Guatemala, nor did they apply for a work permit in Guatemala. Finally, the parties did not receive mail in Guatemala. Instead, since 2016, their mailing address for both personal and business purposes was the home of James’ mother in Hartford, Wisconsin.

On February 12, 2019, Ericka and the kids departed Guatemala and flew to Wisconsin. Almost two months later, on April 5, 2019, James filed a divorce action in Idaho. This filing appeared to be the first time James asked for the children’s return to Guatemala. On August 12, 2019, Ericka filed a formal petition for divorce, also in Dane County, Wisconsin. The Dane County Family Court Commissioner found that the parties could not stipulate to jurisdiction in Wisconsin, concluding that Guatemala was the “home state” of the children and rejecting Ericka’s argument that their living in Guatemala was a “temporary absence.” On James’ motion, the Dane County Circuit Court ultimately stayed the divorce action before it pending this court’s determination of James’ by then pending Hague Convention petition. 

The parties both called expert witnesses to offer testimony about Guatemala’s safety and, in particular, the safety of women and children.  The district court noted that the Convention does not define the term “habitual residency,” but case law in this country and others discourage reliance on traditional notions of residency or domicile unique to an individual country’s laws to avoid a lack of uniformity in enforcement of the Convention. The Seventh Circuit has outlined an approach for making this determination relying in substantial part on a case from the Ninth Circuit, which other Circuits have also followed. See Koch v. Koch, 450 F.3d 703 (2006) (citing Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)). Generally speaking, that determination turns on the parties’ intent:” [T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. Of course, one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended. If you’ve lived continuously in the same place for several years on end, for example, we would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period.” For young children, like Steven, Holly, and Natalie, the Seventh Circuit instructs that the proper focus is on the intent of the parents, rather than on the children’s acclimatization. Koch, 450 F.3d at 713. Moreover, the court’s focus should be on the period of time when the parents last shared an intent. Id. at 712, 715; see also Neergaard-Colon v. Neergaard, 752 F.3d 526 (1st Cir. 2014) Finally, as the parent petitioning for relief under the Hague Convention, James carried the burden to prove this shared intent by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A). In inquiring into the parents’ shared intent, “the representations of the parties likely cannot be accepted at face value,” Koch, 450 F.3d at 713, but rather will require an examination of “all available evidence.”. In other words, the court “should look at actions as well as declarations.” 

Here, the Fosters initially traveled to Guatemala in the fall of 2016 and again in early 2017, to explore it as a possible place to live, while also traveling in Mexico and Belize. At that point, James and Ericka had no shared intent to reside in Guatemala “habitually.” The preponderance of the evidence suggested that this was still true when James returned to Guatemala alone in June 2017, despite his plan to find a larger and more comfortable place for the family to live. Indeed, James and Ericka agree, that he left the family in Wisconsin without agreement from Ericka that she and the children would join him. Ericka ultimately did board a plane with her children to Guatemala in early August 2017 of her own volition and without physical force, but the court credited her testimony, that she agreed to return to Guatemala under an ultimatum from James: remain married and live in Guatemala or separate and stay in Wisconsin with the children. At that point, Ericka had plainly no wish to live in Guatemala for any extended period of time; instead, her decision to return to Guatemala was the result of her attempt to save the marriage and her not unreasonable belief that James would want to move again in time, or at least give in to wanderlust, as he had throughout their almost seventeen year marriage. As Ericka credibly testified, she simply hoped to wait out James’ then fascination with Guatemala. Further, implicit in her decision, was the thought that if, for the first time, James were to put down real roots in a foreign country, Ericka would have to decide whether or not that was tolerable for her and their children. Whatever James’ hopes or intent may actually have been, therefore, the parties had not formed a shared intent to reside habitually in Guatemala at the time Ericka returned with their children in August of 2017.

        The court also had to consider the possibility that even though a mutual intent to abandon a residency and take up another had not be formed “at the moment of departure; it could [have] coalesce[d] during the course of a stay abroad originally intended to be temporary.” Koch, 450 F.3d at 713 (quoting Mozes, 239 F.3d at 1075-76). Accordingly, the court turned to the two other, generally recognized categories: the extent to which the family abandoned their lives in the prior country and established lives in the new country. Here, the Fosters sold the Idaho house they were living in and mutually considered home even before their initial visit to Guatemala in October 2016. Normally, this action would weigh in favor of finding an intent to abandon the prior residence. However, given the parties’ history of frequent sales of homes and numerous moves, coupled with James’ testimony that they sold the house in Sandpoint, Idaho, not because they had a shared plan to reside anywhere else in particular, and at that time certainly not because of a specific shared intent to move to Guatemala, but simply because they had received a price that was too good to pass up, which renders the weight of this home sale relatively insignificant here. Instead, as in the past, the sale of their home provided the family another opportunity for further travel and exploration, not a shared intent to abandon Idaho, particularly if Ericka’s intent is considered, which it must be. As for the extent to which the parties moved their personal belongings to the new country. The evidence reflected that the Fosters merely brought suitcases containing toys, clothing and school books, but did not move furniture, automobiles, or other valuable, personal belongings. In fact, while they sold some of their belongings, James and Ericka packed up their family heirlooms, including furniture Ericka’s father had made for them, and other valuables, including $30,000 in gold, and stored them in Wisconsin at James’ mother’s home. In addition, throughout their time in Guatemala, the Fosters maintained and used bank accounts in the United States. The parties also forwarded their mail within the United States throughout their joint time in Guatemala. See Ruiz, 392 F.3d at 1254 (relying on fact that the mother “had her American mail forwarded to an American address and not to Mexico” to support a finding that she did not intend to reside in Mexico). Finally, the parties continued to pay taxes in the United States and maintained their Idaho drivers’ licenses. These actions all weigh in favor of finding a lack of shared intent to abandon the United States for Guatemala.

While the court noted above that the legal definition of “residency” is not determinative of the “habitual residency” question under the Hague Convention, courts commonly consider the legal residency status of the parties in the new country. Here, only James ever secured residency status, and even then, only a week before the trial in this court. Nor was there any evidence that the Fosters even considered taking steps to secure a longer-term permit to stay in or become residents of Guatemala during the entire time the family lived there from roughly August 2017 to February 2019, despite all of them having to leave Guatemala every 90 days or travel to Guatemala City and pay $25 to secure an extension. This failure also reflected the status of tourists on an extended visit, rather than of a family intending to stake roots in a new country. 

While Ericka’s interests may not have been given equal weight in their marriage, the court found that she was nevertheless steadfast in opposing any kind of longer-term move to Guatemala. Accordingly, the court had little trouble finding Ericka’s wholly credible testimony that she returned to Guatemala in an attempt to save her marriage, knowing James’ pattern of losing interest and moving on -- when coupled with the overall lack of objective evidence demonstrating an intent to abandon the United States for Guatemala -- was sufficient to conclude that James and Ericka had formed no shared intent for the family’s habitual residence to be Guatemala at any time before or during their stay in Guatemala, including specifically right before Ericka removed the children from Guatemala to Wisconsin in February 2019. The last time James and Ericka had a shared intent for a habitual residence within the meaning of the Hague Convention was when they lived as a family in their last home in Idaho. 

The Ninth Circuit in Mozes explained that even in the absence of a shared intent, “a child can lose [his or her] habitual attachment to a place.” The court in Mozes cautioned, however, that courts “should be slow to infer in the absence of shared parental intent that children have changed their habitual residence through acclimatization.” Here, in light of the children’s extremely limited knowledge of both the dominant language of the Guatemalan people and Spanish, almost no involvement in schooling or other meaningful social activities, and frequent return trips back to Wisconsin during a relatively short stay overall of roughly seventeen weeks, the objective evidence did not support a finding that their habitual residency transferred to Guatemala, particularly in the absence of a shared intent on the part of their parents to abandon the United States for Guatemala. For all of these reasons, the court concluded that James Foster failed to meet his burden of demonstrating by the preponderance of the evidence that the children were habitually residing in Guatemala. 

Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) [Norway] [Grave risk of harm] [Petition granted]

In Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) Respondent-Appellant Dana Marie Eidem (“Dana Marie”) appealed from a judgment of the District Court granting the application of Petitioner-Appellee Per Magne Eidem (“Per Magne”) for an order directing the return of his two sons to Norway. 

Dana Marie appealed only the District Court’s ruling with respect to her “grave risk” defense, which prevents signatory States from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b) (“grave risk” defense). 

In 2008, Dana Marie and Per Magne, then married, had their first child, T.E., in Norway. Shortly after T.E.’s birth, he was diagnosed with Hirschsprung’s disease, a condition in which nerves in parts of the intestine are missing. As a result of his disease, when very young, T.E. underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon. In 2010, the parties had their second child, N.E., who struggled academically from a very young age. Both children required psychological care. In June 2013, Dana Marie sought legal separation from Per Magne in Norway courts. The parties agreed to share custody of the children. Three years later, during the summer of 2016, Per Magne consented to Dana Marie traveling with the children to the United States for a one-year period, and Dana Marie and the children came to New York City. In January 2017, Per Magne began making arrangements with Dana Marie for the children’s eventual return to Norway. Dana Marie informed Per Magne that she would return with the children to Norway on August 8, 2017. On that day, Per Magne went to meet them at the airport where they were expected, but they did not appear. Still in New York City, Dana Marie proceeded to cut off all communication with Per Magne. On July 6, 2018, Per Magne petitioned in the United States District Court for the Southern District of New York for the children’s return.

On April 29, 2019, after an evidentiary hearing, the District Court granted Per Magne’s petition and ordered that the children be returned to Norway by June 29, 2019. It rejected Dana Marie’s “grave risk” defense, concluding that she did not sustain her burden of proof and that she lacked credibility. The District Court found that Dana Marie failed to establish that medical care in Norway “is so lacking” as to pose a grave risk to T.E.’s health or that the children would be deprived of adequate psychological care upon their return to Norway. Eidem v. Eidem, 382 F. Supp. 3d 285, 293-94 (S.D.N.Y. 2019).

The Second Circuit observed that because of the strong presumption that children should be returned to the place of their “habitual residence,” it interprets the grave risk defense narrowly. Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir. 1999) (“Blondin I”).

On appeal, Dana Marie argued, inter alia, that (the record clearly established that an order directing the children’s return to Norway would place them at grave risk. She maintained that, in Norway, the children would have limited access to medical treatment and emergency services (for T.E.), and psychological supports for both children, each of whom had unique mental health and learning needs. The Second Circuit concluded that the record, as it existed after the October 8, 2018 hearing, established that the children would not be at grave risk if returned to Norway. Dana Marie failed to establish by clear and convincing evidence that in Norway the children would receive inadequate medical and psychological care. Neither Dana Marie nor the medical experts she relied upon took the position that in Norway, T.E. would not have any treatment or care for his disease. As the District Court noted, less than optimal medical care does not equate to grave risk and is not the standard set for permitting a parent to remove a child from his habitual residence. Eidem, 382 F. Supp. 3d at 293 (“[T]he narrow question before the Court is not whether [the doctors in New York] are best suited to manage T.E.’s condition, but whether access to medical care in Norway is so lacking as to pose a grave risk to T.E.’s health.”). In Blondin II, it ruled that the “grave risk” defense does not apply to “those situations where repatriation might [merely] cause inconvenience or hardship.” 238 F.3d at 162. It agreed with the District Court that Dana Marie did not establish by clear and convincing evidence that T.E. would receive inadequate medical care in Norway and would be subject to “grave risk.”

As to the children’s psychological care, the District Court reasonably credited the conclusion of Dr. Rahtz, a psychiatric evaluator who testified on Dana Marie’s behalf. Dr. Rahtz raised concerns about disrupting the children’s current support and care network in New York. But the District Court put the calculus appropriately: While disrupting the children’s current mental health treatment may not be desirable, the children had to undergo a similar disruption when [Dana Marie] first pulled them out of their mental health treatment programs in Norway and took them to the United States. Indeed, there was reason to believe that a return to Norway—where the children lived for the first eight and six years of their lives, and where the vast majority of their family resided—would be less traumatic than the original trip to the United States. Eidem, 382 F. Supp. 3d at 294.  It concluded that the record demonstrated that Dana Marie did not carry her burden of establishing her grave risk defense by clear and convincing evidence. 

Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019)[Hungary] [Grave risk of harm] [Petition denied]

In Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019) the Second Circuit affirmed a judgment, denying the petition of Petitioner-Appellant Gabor Zsolt Mohacsi claiming that Respondent-Appellee Isabella Sofia Rippa Herrera1 wrongfully removed the parties’ son, NIR, from Hungary and wrongfully retained him in the United States. 

Petitioner and Respondent met in Hungary and started dating when Petitioner was 38 and Respondent was 19. Soon after Respondent moved in with Petitioner, their relationship began to deteriorate. Respondent learned that Petitioner drank alcohol daily and used ecstasy. Petitioner began verbally abusing Respondent and demanding that she have sex with other men in front of him, which she resisted. One night, Petitioner invited a drug dealer to the house and told Respondent to have sex with him. Although she refused Petitioner’s request about ten times, she eventually relented because she felt that she had nowhere else to go that night. Petitioner videotaped the ensuing sexual encounter and uploaded it to his YouTube channel. The next day, he forced Respondent to watch the video during sex as a “punishment.” The verbal abuse and non-consensual sex continued, eventually accompanied by physical abuse. Petitioner physically assaulted Respondent on more than one occasion, slapping and choking her when he was angry.

The parties broke up in June 2014. At the time, Respondent was pregnant with NIR. After that, Petitioner made publicly available his videos of sexual encounters involving Respondent and sent her screenshots to remind her that she was “nasty and worthless.”. He also, on one occasion, threw a rock through the window of the apartment where Respondent was staying and threatened to kill her. Although Petitioner was sentenced to community service as a result of this incident, Respondent was unable to obtain a protective order.3

In August 2015, Respondent left Hungary for the United States with NIR, who was then less than a year old. In June 2016, a Hungarian court issued a paternity decision declaring Petitioner to be the father of NIR. Petitioner continued to harass Respondent, sending pornographic images of her to her father and threatening to show the pornographic images to NIR as well.

At the hearing in the District Court, Respondent presented unrebutted expert testimony from Dr. B.J. Cling, a psychologist specializing in domestic violence, harm against women, child abuse, and sexual harassment. Based on her psychological examination of Respondent, Dr. Cling testified that Respondent was suffering from mild post-traumatic stress disorder related to her relationship with Petitioner. Dr. Cling opined that Petitioner’s abuse of Respondent would likely continue and even intensify were Respondent to return to Hungary with NIR and that there was a “high likelihood” that NIR would develop a “psychological disorder should he witness such abuse.” Dr. Cling also testified that, statistically speaking, Petitioner was likely to abuse his child directly and that the incidents where Petitioner accosted Respondent when she was holding NIR indicated “a certain disregard of the child.” 

The District Court credited Respondent’s testimony, finding her demeanor believable and her testimony corroborated by the record, while Petitioner was “defensive,” “at times aggressive,” and sometimes “appeared to be simply lying.” The District Court also credited Dr. Cling’s testimony.

The District Court determined that Petitioner failed to establish a prima facie case of wrongful removal or wrongful retention, and that even if he could establish wrongful removal or wrongful retention, his petition would still be denied because Respondent established the applicability of two independently sufficient defenses. the District Court concluded, that Respondent established by clear and convincing evidence that NIR would face a “grave risk of harm” if returned to Hungary. With respect to Petitioner’s threat, the District Court noted that exposing young children to inappropriate sexual material can constitute psychological abuse. The District Court also determined that the protections available under Hungarian law were insufficient to mitigate the grave risk of harm to NIR given Petitioner’s testimony about his relationship with the local police commander and Respondent’s inability to obtain a protective order despite making multiple police reports about Petitioner.



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The Second Circuit observed that Under Article 13(b) of the Hague Convention, a court is not bound to order the repatriation of a child if “[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The establishment of such a risk is an affirmative defense to a claim of wrongful removal or retention under the Hague Convention. See Souratgar v. Lee, 720 F.3d 96, 102–03 (2d Cir. 2013).It found no factual or legal error in the District Court’s determination that the repatriation of NIR to Hungary would expose NIR to a grave risk of harm within the meaning of the Hague Convention. It is true, as Petitioner emphasized, that “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The exception has been established, however, “where the petitioner showed a ‘sustained pattern of physical abuse and/or a propensity for violent abuse’ that presented an intolerably grave risk to the child.” “Evidence of ‘[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense.’” Here, the District Court’s assessment of grave risk was based not only on Petitioner’s abuse of Respondent but also on Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR directly and on Petitioner’s threat to show the pornographic images of Respondent to NIR. The credibility of that threat was borne out by the fact that Petitioner has sent such images to other members of Respondent’s family.

“Mindful that the assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference,” Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 145 (2d Cir. 2000) it saw  no reason to question the District Court’s credibility findings in this case.

Petitioner also challenged the District Court’s decision to credit Dr. Cling’s testimony that Petitioner would likely abuse Respondent and NIR were they to return to Hungary, asserting that it is “improper generalized testimony” because Dr. Cling never examined Petitioner. The District Court addressed this point, which was made during cross-examination of Dr. Cling, by noting Dr. Cling’s explanation that her testimony was based on several psychological risk factors and statistics about abusers. Petitioner cited no authority indicating that it is improper for a district court to rely on a psychologist’s testimony if that testimony is based on social science research rather than in-person examination. Cf. Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000) (“[C]redible social science literature establishes that serial spousal abusers are also likely to be child abusers.”).

Petitioner asserted that his relationships with his other children were “devoid of any abuse.” Accepting as true the statements that Petitioner had not abused his other children, it could not say that the District Court clearly erred in giving greater weight to Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR. See United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). In any event, Petitioner’s relationships with his other children do not bear on whether he will abuse Respondent if she returns to Hungary.

Finally, Petitioner asserted that “Hungary provided ample protection for children and adults from domestic violence and other abuse. The only support in the record for that proposition was the testimony of Petitioner’s Hungarian law expert that Hungary’s Child Protection Act provides “different measures for the State to protect children.”. That Hungary has such a law does not undermine the District Court’s finding, based on the specific circumstances of this case, that the protections available under Hungarian law do not mitigate the risk of harm to NIR.

Díaz-Alarcón, V. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019)[Chile] [Standard of review] [Grave risk of harm] [Petition denied]

  In Díaz-Alarcón v. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019) the district court denied Alejandro Díaz-Alarcón petition for return of his daughter from the United States to Chile. The First Circuit affirmed. 

         Díaz-Alarcón and Flández-Marcel were Chilean nationals. Flández-Marcel gave birth to their daughter, ADF, in 2008, in Santiago, Chile. Díaz-Alarcón and Flández-Marcel married in 2009, separated in 2011, and divorced in 2014. They agreed that Flández-Marcel would have patria potestad (meaning “parental power”) over ADF, but that Díaz-Alarcón would have a “direct and regular relationship” with ADF through scheduled visits. In 2011, after Díaz-Alarcón and Flández-Marcel had separated. Flández-Marcel met and began dating Héctor Pérez-Babilonia, a Puerto Rico resident. ADF eventually started spending time with Pérez-Babilonia. And in 2013 Díaz-Alarcón overheard ADF call Pérez-Babilonia “dad.” Díaz-Alarcón, in his own words, “told [ADF] off,” explaining that Pérez-Babilonia “wasn’t her dad.” A few months later, Flández-Marcel had ADF evaluated by a child psychologist. And ADF got diagnosed with a possible “[a]djustment [d]isorder.” The staff there also interviewed Díaz-Alarcón, Flández-Marcel, and Pérez-Babilonia. Díaz-Alarcón said that both he and Flández-Marcel had verbally and psychologically abused each other. Flández-Marcel, for her part, accused Díaz-Alarcón of psychologically abusing her. After the interviews, a social worker concluded that ADF had [a]lienation [s]yndrome, which describes the change that occurs when there are conflictive marital break ups, in which the children censure, criticize or reject one of their parents in an unjustified and/or exaggerated manner. This implies that one parent systematically and consciously programmes the children to denigrate the other. Another social worker said that “it was demonstrated” that Díaz-Alarcón had not “mistreat[ed]” ADF, though adding that “it was demonstrated that the parents handled the family dynamic badly, often being prone to including the girl in conflicts between [them].”

           In 2014, a couple of weeks after Díaz-Alarcón and Flández-Marcel got divorced. Flández-Marcel asked the authorities in Santiago to issue a protective order for ADF and her against Díaz-Alarcón, accusing him of having committed the crime of “threatening with no aggravating circumstances against persons”. The authorities issued the protective order, telling the police to give “priority status” to calls from Flández-Marcel and to “periodic[ally] patrol []” her neighborhood. But they eventually closed the matter after the investigation unearthed no “information required to continue the case.” A few months later, in 2015, just before she married Pérez-Babilonia, Flández-Marcel asked a Chilean family court for permission to move to Puerto Rico for one year with ADF. In her petition, Flández-Marcel claimed that Díaz-Alarcón could not “be located.” After somehow learning about the petition, Díaz-Alarcón formally opposed Flández-Marcel’s request in papers filed with the court, saying she knew where he was and accusing her of being an unfit mother. The Chilean court then ordered Flández-Marcel to undergo a psycho-social evaluation, focusing on her parenting skills. A social worker interviewed ADF as part of the process. And ADF told her that Díaz-Alarcón “is a fighter [;] he always hits with a closed fist. I’ve seen it. If I say something to him, he hits me. If I ask him a question, he hits me. If I ask him if we can go to the park, he hits me. That’s how he was taught; violently. His mum and dad told me. Some other days he does not hit. Asked by the social worker “to think of some positive aspects of her dad,” ADF said that Díaz-Alarcón is “a happy and loving person” who “gives kisses” and “affection.” But she added that he “doesn’t listen” when she tells him “he shouldn’t hit [her] anymore.”

          After reviewing the evaluation, the Chilean court pushed Díaz-Alarcón and Flández-Marcel to reach an agreement. And they eventually did, agreeing, for example, that Flández-Marcel could take ADF to Puerto Rico from December 26, 2015 to March 26, 2016 and that Díaz-Alarcón would have “constant communication” with ADF as well as “additional days of visits” when she returned to Chile. The Chilean court entered the agreement as a final and enforceable judgment. Flández-Marcel and ADF flew out on December 27.

Once there, Flández-Marcel enrolled ADF in school for the semester starting in January 2016. Early in January, ADF had a Skype call with Díaz-Alarcón. Flández-Marcel was present too. ADF told Díaz-Alarcón that she never wanted to speak with him again. He asked her why. And she, according to Flández-Marcel, just screamed, “Cut, cut, cut.” So Flández-Marcel cut the call short. Flández-Marcel repeatedly asked ADF what was going on. According to Flández-Marcel, at first ADF would not say. But one day — after learning that Flández-Marcel was pregnant — ADF started hitting her and then screamed, “Don’t bathe me, don’t bathe me, don’t bathe me.” “Who is going to bathe you?” Pérez-Babilonia asked. “Don’t ask me,” ADF said.  At some point (apparently in January or February 2016), ADF told Flández-Marcel and Pérez-Babilonia the following — at least according to Flández-Marcel’s expert witness, Dr. Carol Romey: During a visit to his home when she was 5, Díaz-Alarcón had her take off her clothes to take a bath. He took off his clothes too, got into the tub, touched her “private parts,” and (per Pérez-Babilonia) had her touch his. She then saw a “white-yellow liquid come out of his penis.” After, he beat her “with a slipper [] many times all over,” walked “to the kitchen,” and made her “something to eat.” The deadline for ADF’s return to Chile — March 26, 2016 — came and went without her showing up. And she remained in Puerto Rico 

Díaz-Alarcón petitioned Puerto Rico’s federal district court, seeking ADF’s return. Flández-Marcel raised the grave-risk and child-objection defenses. The district judge referred the matter to a magistrate judge for an evidentiary hearing and a recommendation. Following the close of evidence, the magistrate judge issued a report and recommendation. On the grave-risk issue, the “critical question” being whether Díaz-Alarcón “sexually abused” ADF, the magistrate judge said that Dr. Romey (Flández-Marcel’s expert) testified “convincingly ... that [ADF] had suffered serious trauma and now suffers PTSD and anxiety.” Dr. Romey, the magistrate judge added, also found that ADF’s relationship with Díaz-Alarcón is the only “trigger” for her “PTSD and anxiety” and that “she would be at grave risk of a psychotic break if she were to be placed under [his] care ... until she can process her experiences.” But in the magistrate judge’s telling, Dr. Romey’s “purpose ... was to ... assess [] ... [ADF’s] maturity” and current “psychological state,” and so did “not speak directly to whether [Díaz-Alarcón] sexually abused [ADF].” Dr. Mercado-Colón (Díaz-Alarcón’s expert) did “speak directly to that issue,” the magistrate judge wrote. And having assessed ADF, Dr. Mercado-Colón “concluded that there was a suspicion of sexual abuse, just not by [Díaz-Alarcón],” given some incongruences” in ADF’s statements about the incident. Ultimately, the magistrate judge said that while ADF “may be a victim of sexual abuse, a preponderance of the evidence does not show that [Díaz-Alarcón] abused her. “On the child-objection issue, the magistrate judge said that ADF “clearly objected to returning to Chile.” Summarizing his in-chambers interview with ADF, the magistrate judge said that she knows the difference between telling the truth and telling a lie; is “intelligent and mature,” having “a good understanding of the decision facing her and specific reasons for her ... opinion”; and had not been “coached when she conveyed that she wanted to stay in Puerto Rico” — “she did not appear to be unduly influenced by the wishes of others such that her answers did not change even after [the magistrate judge] impressed upon her the importance of telling the truth.” And, the magistrate judge found, Dr. Romey’s report and testimony — e.g., that she has a “level of maturity clinically sufficient to be able to express her concerns and wishes in a reasoned and coherent manner” — supported these conclusions.

Based on his findings, the magistrate judge recommended that the district judge deny Díaz-Alarcón’s petition because (in his opinion), while Flández-Marcel cannot show “by clear and convincing evidence that [ADF] would be at grave risk if returned to Chile,” she can show “by a preponderance of the evidence that [ADF] is sufficiently mature to object to returning to Chile” and that she did so object.

Both sides objected to the magistrate judge’s report and recommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Giving the issues fresh-eyed “de novo review,” see Mercy Hosp., Inc. v. Mass. Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005), the district judge adopted the magistrate judge’s recommendation that Flández-Marcel proved by a preponderance of the evidence that ADF “is sufficiently mature to object to returning to Chile and that [she] does object to returning.”  On the grave-risk issue, the district judge highlighted how the magistrate judge never asked ADF to go into the details of the sexual abuse. Yet the district judge found that every time Dr. Mercado-Colón “revisited the subject of the sexual abuse, [ADF] would provide the same details” — including “that her father touched her private parts, that she was in the bathtub, and he went into the bathtub naked, that a liquid came out of his penis that was yellow and sticky.” And the district judge emphasized that “[t]hroughout the several interview sessions and the repeated questioning by Dr. Mercado[-Colón], [ADF] remained steadfast that it was [Díaz-Alarcón] who sexually abused her at his home.” So, the judge ruled, clear and convincing evidence established that ADF faces a grave risk of harm if sent back to Chile. And with that, the district judge dismissed Díaz-Alarcón’s petition, precipitating this appeal. 

The First Circuit reviewed the factfinding for “clear error,” see Darín, 746 F.3d at 8. But showing clear error is no easy task. See, e.g., United States v. Cates, 897 F.3d 349, 352 (1st Cir. 2018) (calling clear error’s “heights ... difficult to scale”). It is not enough that a finding strikes the court as possibly or even probably wrong. See Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41, 45 (1st Cir. 2013). Rather, the finding must be “wrong with the force of a 5-week-old, unrefrigerated, dead fish.” It must be left “with the definite and firm conviction” that the finding is “a mistake.” (United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). While it reviews the judge’s factual findings for clear error, it determines de novo whether she interpreted and applied the Convention correctly. See, e.g., Neergaard-Colón v. Neergaard, 752 F.3d 526, 530 (1st Cir. 2014).

Díaz-Alarcón challenged the district judge’s grave-risk and child-objection conclusions. The Court began and ended with his grave-risk contentions, aware (to echo a point voiced by Danaipour I) that [t]he policy under the Convention of ... the United States government ... is weighted towards protection of the child when there is credible evidence of sexual abuse, particularly when the child is so young and when the allegations involve abuse by a parent. This policy informs the grave risk analysis. 286 F.3d at 16.

The Court found that Díaz-Alarcón’s first set of arguments which was directed at the district judge’s handling of the magistrate judge’s recommendations was to no avail.  Moving on, Díaz-Alarcón wrote that the district judge could have ordered ADF back to Chile without putting her in harm’s way by imposing “undertakings” — i.e., enforceable conditions on her return designed to keep her safe. See Danaipour I, 286 F.3d at 21-23; see also Danaipour v. McLarey, 386 F.3d 289, 302-03 (1st Cir. 2004) (hereinafter, Danaipour II). Separating permissible undertakings from impermissible ones is complicated stuff, however. See Danaipour I, 286 F.3d at 21-23. There are concerns for “international comity” — an American court, for example, should do nothing that “would smack of coercion of the foreign court.” And there are concerns about “the appropriateness of undertakings when the abducting parent claims to be protecting the child from abuse,” — some “authority,” for instance, “indicat[es] that undertakings should be used more sparingly when there is evidence that the abducting parent is attempting to protect the child from abuse,” Danaipour II, 386 F.3d at 293 (holding that a district court’s supportable finding that a child’s return “would cause grave harm” makes “immaterial” petitioner’s claim that the courts in the child’s country of habitual residence “could take ameliorative actions to prevent further harm,” adding that “[i]n such circumstances, [the Convention] does not require separate consideration either of undertakings or of steps which might be taken by the courts of the country of habitual residence”). Díaz-Alarcón had the burden of proof on the undertakings issue. See Danaipour I, 286 F.3d at 21, 26. But he dealt with none of these complexities. Which is not the way to turn the tide in his favor, since failing to give “serious treatment [to] a complex issue ... is not adequate to preserve the claim on appeal.” See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).

Díaz-Alarcón hinged his last set of arguments on caselaw indicating that a district judge “has discretion to order return even where such return poses a grave risk of harm or threatens to place the child in an intolerable situation.” See Lozano v. Montoya Alvarez, 572 U.S. 1, 21, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (Alito, J., concurring) As he sees it, the district judge “abused [her] discretion by not giving sufficient weight[,] if any,” to Flández-Marcel’s “inequitable conduct” (e.g., “conceal[ing]” ADF from him and “undu[ly] influenc[ing]” her), to ADF’s “interests” (e.g., Flández-Marcel “disrupt[ed] the strong and stable relationships [ADF] had in Chile”), and to the Convention’s “aims and objectives.” The First Circuit saw no reason to reverse.

It rejected Díaz-Alarcón’s contention that the district judge had no “awareness of [her] responsibility to weigh [] the relevant factors.” He played up these factors below, however. And the district judge said that she considered the “evidence presented.” “While a fuller explanation might have been helpful,” “the absence of a more detailed explanation does not amount to an abuse of discretion.” See Yaman v. Yaman, 730 F.3d 1, 22 (1st Cir. 2013).

The Court concluded that an appellant’s odds of winning a clear-error challenge are not very good. See, e.g., Cates, 897 F.3d at 352. This is especially so here, given how the district judge was uniquely situated to gauge ADF’s credibility. See, e.g., United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011). Sure, maybe the district judge could have made different credibility findings or weighed the evidence differently. But that did not make her at-issue findings clearly erroneous. Ultimately, because none of Díaz-Alarcón’s arguments left it  with a “definite or firm conviction” that the district judge made “a mistake” or, more odoriferously, convinces us that she was “wrong with the force of a 5 week old, unrefrigerated, dead fish,” see Toye, 728 F.3d at 46, it could not  reverse her on the grave-risk issue — even if it would have reached a different a conclusion,. And given this ruling, it had no need to decide the child-objection issue.